FEDERAL COURT OF AUSTRALIA

SZHUD v Minister for Immigration and Citizenship [2007] FCA 1303

SZHUD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 424 OF 2007

MIDDLETON J

10 August 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of motion filed on 14 June 2007 by the applicant be dismissed.

2.                  The applicant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By notice of motion and affidavit filed 14 June 2007 the applicant seeks to set aside the orders made by this Court on 7 May 2007.  On 7 May 2007, the applicant's appeal was dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) because the applicant failed to attend the hearing.  The applicant claims in his supporting affidavit that he nominated an incorrect address in the notice of appeal filed with the Court and therefore was unaware of the hearing date on 7 May 2007. 

2                     Some objections were made by the first respondent to certain parts of the supporting affidavit but I do not need to deal with such objections as I do not rely upon those parts in my reasons for the conclusion of this matter.

3                     Section 25(2B)(bb)(ii) of the Act confers a power on the Court to dismiss an appeal for failure of the appellant to attend the hearing.  Section 25(2B)(bc) of the Act empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default.

4                     On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance.  I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J. 

Procedural background

5                     By notice of appeal dated 19 March 2007, the applicant appealed against a judgment of a federal magistrate of 2 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.

6                     The applicant is a 37 year old male citizen of Bangladesh who arrived in Australia in March 1997.  Before the Tribunal the applicant claimed that he and his mother were targeted by Muslim fundamentalists in Bangladesh because they were Hindus and were forced to flee to India in 1996.  The applicant claimed they lived in India illegally until he was able to obtain a false passport which he used to travel to Australia in 1997.  The applicant claimed that his departure was preceded by two major incidents.  On 26 January 1996 the applicant was kidnapped by a group of extremist Hindus and forcibly circumcised and sexually harassed.  The applicant claimed that he reported this incident to the police but withdrew the case because he did not think the authorities would act on it.  The applicant also claimed that in the same year the land belonging to his mother was occupied by Muslims who demanded she sign documents saying that she sold her land and property to them.  The applicant stated that the Hindu community in Bangladesh participated in persecution of Hindus.  The applicant claimed he no longer knew what happened to his mother or her property after they left Bangladesh and he came to Australia.

7                     The Tribunal accepted the applicant’s claim that he and his mother were kidnapped by Muslim fundamentalists and were forced to abandon their land and go to India.  The Tribunal found, however, that the information provided to the Tribunal by the applicant did not support the claim that Hindus in Bangladesh are commonly at risk of suffering persecution by the Muslim majority or denied protection by the State solely because they are Hindus.  The Tribunal was aware that Hindus have been discriminated against but it was not satisfied that the discrimination was of such a nature or extent as to constitute persecution.  The Tribunal considered independent country information and was satisfied that Hindus seeking or requiring state protection in Bangladesh were not subject to differential treatment because they are Hindus by either the government or the authorities.

8                     The Tribunal also considered the individual circumstances of the applicant and determined that his fear of harm in the future related to harm suffered almost 10 years ago when he was kidnapped and molested.  It found that the fear was not well-founded.  The attack in 1996 was confined to a particular place and time and the Tribunal was satisfied that the circumstances which led to the attack no longer existed and would not be replicated in the foreseeable future.  The Tribunal was satisfied that it was neither necessary nor desirable for the applicant to return to the place where he lived previously.  His evidence indicated that he severed all ties with that community in 1996 and he did not express an interest to return there. 

9                     As a separate matter, the Tribunal was satisfied that the applicant could relocate within Bangladesh and that he had all the skills, knowledge and ability to relocate and it was reasonable for him to do so.  The Tribunal was satisfied that the applicant could not be denied protection and that he did not make a meaningful attempt to access protection by the State in 1996 or that the authorities could have done more in the circumstances described.

10                  By further amended application dated 2 November 2006, the applicant, who was legally represented before the federal magistrate, pursued only one ground of appeal.  He claimed that there was a constructive failure in jurisdiction as the Tribunal did not decide the real question in the case as it had no rational basis upon which to answer the effectiveness of protection by the State and in doing so failed to properly assess whether there was a real chance of persecution in the future.  The applicant claimed that the Tribunal failed to decide whether the authorities were reasonably willing and able to provide State protection and the Tribunal failed to decide whether the protection afforded was sufficient to remove a real chance of persecution.

11                  The federal magistrate, accepting the submissions of the first respondent, found that the Tribunal had found that there was a demonstrated willingness and ability of the State to intervene and protect Hindus.  It was accepted that this was more than adequate to indicate that the Tribunal had turned its mind to the appropriate statutory questions and also made a finding about non-differential treatment.  The Tribunal also found the authorities were willing and able to protect the Hindu community and provide such protection in a non-discriminatory fashion to meet the test in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.

Whether An Arguable Case

12                  In the appeal that was before the Court previously in respect of the orders made on 7 May 2007, the applicant raised two grounds of appeal.  The first ground was that the Tribunal erred in its finding that the applicant could relocate, claiming that the Tribunal erred in finding that relocation was a reasonable and feasible option for the applicant.  The second ground was that the federal magistrate erred in dismissing the ground of review challenging the adequacy of the Tribunal’s findings in relation to State protection.  

13                  As to the second ground, the applicant has not identified, with any specificity, any jurisdictional error on behalf of the federal magistrate.  Indeed, on a proper review of the federal magistrate’s decision, I can find no basis upon which to conclude that the learned federal magistrate erred in accepting the Tribunal’s findings in relation to State protection.  As the learned federal magistrate found, the Tribunal considered in detail the applicant’s claims and there is no proper basis to conclude otherwise.

14                  The first ground raised was included in the original application for judicial review and supporting affidavit, but was not pursued or ventilated before the federal magistrate.  Accordingly the applicant would need leave to rely upon that ground, it being effectively abandoned before the Federal Magistrates Court.  In Metwally v University of Wollongong (1985) 60 ALR 68, the High Court unanimously held that:

It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 

See also Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [61]-[62] per Gyles J.

15                  In Water Board v Moustakos (1994) 180 CLR 491, Mason CJ, Wilson, Brennan and Dawson JJ held at 497:

More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.  Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

16                  In the present case the applicant wishes to challenge the Tribunal’s relocation finding.  The first respondent submitted that it would be contrary to the interests of justice to grant leave to the applicant to rely upon the first ground of appeal.  It submitted that, if it had been raised at first instance it would have been able, if desired, to obtain a transcript of the hearing in order to defend any challenge to the adequacy of the Tribunal’s decision.

17                  I accept that in the circumstances of this case, particularly bearing in mind that the applicant was legally represented at the hearing before the federal magistrate, the applicant should not be granted leave to rely upon this ground of appeal.  Putting aside the issue of further evidence, there is a public interest in being astute to not allow points not argued below to be raised on appeal.  I accept that there are instances where such arguments can be put, but this is not one of those cases.

18                  Further, relocation was a separate additional finding made in relation to the harm the applicant claimed to face from certain persons.  The Tribunal had already found that the circumstances leading to that harm no longer existed and would not be replicated in the foreseeable future.  Therefore, there would be no basis upon which the applicant could succeed in setting aside the Tribunal’s decision even if it was subsequently determined that the Tribunal fell into jurisdictional error in its consideration of relocation.

19                  I should say that if the ground relating to relocation had not been abandoned before the federal magistrate and the question sought to be raised would, if successful, mean that the Tribunal’s decision could be set aside, I would take a different view in light of the fact that the correctness and applicability of the leading authority of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 on the question of relocation seems to be before the High Court of Australia (see SZFDV v Minister for Immigration and Multicultural and Indigenous Affairs [2007] HCATrans 63).  However, as I have said, no matter what the position is in relation to relocation, the Tribunal correctly made findings which would independently justify its decision.

Explanation for non-attendance

20                  The applicant has sworn that because he nominated his previous address in his notice of appeal, which was by mistake, he was unaware of the hearing date and could not attend.  In my view, in light of this evidence I am prepared to accept that the applicant has demonstrated a satisfactory reason for non-attendance.  Whilst the applicant himself made the error in filling out the notice of appeal I accept that he genuinely did not know of the hearing date and so could not attend and this is a satisfactory explanation.  As I have said previously I put aside any of the matters raised in the supporting affidavit that were objected to by the first respondent.  I merely rely upon the fact of the mistake, and the applicant not knowing of the hearing date, being a satisfactory explanation in my view.

Conclusion

21                  Therefore, whilst I am of the view that the applicant has explained his non-attendance I do not take the view the applicant has an arguable case.  In my view the federal magistrate was correct in his reasons and conclusions.  For the reasons I have indicated above the application should be dismissed.

Associate:

Dated:         22 August 2007